XXX COURT OF APPEALS

FOR THE NINTH CIRCUIT

Filed by:

XXX

Your Address

City, ST ZIP Code

Phone | Fax

Email

App

ellant in pro per

Table of Contents

Table of Authorities 3

NOTICE OF MOTION TO VACATE JUDGMENT 4

MOTION TO VACATE JUDGMENT 6

VERIFICATION 12

Table of Authorities

Cases

XXX Statutes

XXX Your Address

City, ST ZIP Code

Phone | Fax

Email

Appellant in pro per

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOTICE OF MOTION TO VACATE JUDGMENT

You are notified that on the _____ day of _________________, XXX, at __________ (am/pm), or soon thereafter as Appellant can be heard, in Courtroom ____ of the XXX Court of Appeals for the Ninth Circuit located at [INSERT ADDRESS], Appellant will bring on for hearing this Motion to Vacate Judgment for the reasons stated in the attached Motion.

Dated this _____ day of ____________________, XXX.

Respectfully Submitted,

___________________________________

XXX

Appellant in pro per

XXX

Your Address

City, ST ZIP Code

Phone | Fax

Email

Appellant in pro per

XXX  COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION TO VACATE JUDGMENT

NOW COMES Teena Colebrook, Appellant, and files this Motion to Vacate Judgment issued by this Honorable Court on March 2^nd, 2018, and for cause would show the Court as follows:

1. This Motion is brought pursuant to California Code of Civil Procedure § 663 which states as follows: “A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: (1) incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case where the judgment is set aside, the statement of decision shall be amended and corrected. (2) a judgment or decree not consistent with or not supported by the special verdict.”
2. During the course of this matter, there are 2 forged grant deeds that were entered as exhibits. Exhibit 1 and Exhibit 2. Through Mark D. Estle, Esq. of XXX, P.C., Appellee submitted and entered the forged documents into evidence. Teena Colebrook made a phone call to [who did you call?] and ascertained that the documents that were entered into evidence were fabricated.
3. XXX Code of Civil Procedure § 128.7(b) provides thus: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) it is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”
4. Appellee’s attorney introduced the unverified grants as evidence for the purpose of misleading the honorable court to enter judgment in its favor. That amounts to an improper purpose. In relying upon the forged grants entered into evidence by Appellee’s attorney, the trial court and the appellate court granted judgment in Appellee’s favor.
5. In Banks v. Hathaway, Perrett, Webster, Powers & Chrisman (2002) 97 Cal. App. 4^th 949, 955 [118 Cal. Rptr. 2d 803], the Court of Appeal outlined the procedural prerequisites to the imposition of sanctions pursuant to California Code of Civil Procedure § 128.7 as follows: “Section 128.7 requires that an attorney in a civil action `sign all pleadings, petitions, notice of motions and other similar papers. (§ 128.7, subd. (a).) The signature indicates that the attorney … certifies that: the paper is not being presented for an improper purpose; the legal contentions are warranted by law or nonfrivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence. (§ 128.7, subd. (b).) If the court determines, after notice or a reasonable opportunity to respond, that the attorney … improperly certified the document, it may impose an appropriate sanction. (§ 128.7, subd. (c).)”
6. California Code of Civil Procedure § 128.7(h) states as follows: “A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.” The result of the improper conduct by Appellee’s attorney during the course of this matter is the reliance by the trial court and the appellate court on the fabricated documents to issue a ruling against Appellant. Appellant urges this Court to vacate the judgment that was issued after reliance upon fabricated documents introduced into evidence by Appellee’s attorney.
7. The grant fabrication actions of Appellee and subsequent entering of fabricated documents into evidence by Appellee’s attorney amount to fraud. In Robinson Helicopter Co. v. Dana Corp., 102 P. 3d 268 (2004), the California Supreme Court outlined the elements of fraud as follows: “The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Appellee’s attorney introduced into evidence the fabricated deeds with the intention that the court relies upon them to grant judgment in Appellee’s favor. The trial court and the appellate court relied on the fabricated grants to issue judgment in favor of Appellee. In that regard, Appellant suffered damage by judgment being granted against her due to innocent reliance by the courts on fabricated grants to issue judgment against her. The only way to remedy the fraud committed by Appellee’s attorney is to vacate the judgment issued by the trial court and the appellate court because both courts relied on fabricated grants to issue judgment against Appellant.
8. The trial court did not have subject matter jurisdiction in this matter. Subject matter jurisdiction was fraudulently obtained by Appellee’s attorneys as demonstrated above. Appellant’s property was not listed in Pascascio’s bankruptcy records. 
9. Prior to the institution of proceedings against Appellee, Appellee did not know Anna Mejier, Leslie Pascascio or anything in relation to their property, transactions with Appellee or mortgages with Appellee. Appellant had instituted her own bankruptcy proceedings in accordance with Title 11 of the United States Code.
10. Therefore, it is untenable for the trial court to issue judgment against Appellant when it did not have subject matter jurisdiction in the first place.
11. In Varian Medical Systems, Inc. v. Delfino¸ 106 P. 3d 958 (2005), the California Supreme Court held as follows: “The principle of subject matter jurisdiction related to the inherent authority of the court to deal with the case or matter before it. Conservatorship of O’Connor (1996) 48 Cal. App. 4^th 1076, 1087, 56 Cal. Rptr. 2d 386. Thus, in the absence of subject matter jurisdiction, a trial court has no power to hear or determine the case. Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 288, 109 P. 2d 942. And any judgment or order rendered by a court lacking subject matter jurisdiction is void on its face. Rochin v. Pat Johnson Manufacturing (1998) 67 Cal. App. 4^th 1228, 1239, 79 Cal. Rptr. 2d 719.”
12. Since the trial court did not have subject matter jurisdiction, it had no power to hear or determine the foreclosure proceedings against Appellant. In that regard, the judgment that was issued by the trial court is void.
13. In Lee v. An, 168 Cal. App. 4^th 558 (2008), the California Court of Appeal upheld the principle stated in Re Marriage of Goddard (2004) 33 Cal. 4^th 49, 56 and stated the following: “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.”
14. In the present case, the trial court lacked fundamental authority over the subject matter because the subject matter was obtained by fraudulent means by Appellee’s attorneys. The most appropriate remedy for Appellant would be declaring the judgment issued by the trial court void and subsequently vacating it. Appellant also urges this Court to issue an order stopping the foreclosure on her property.

REASONS WHEREFORE, Appellant respectfully requests this Honorable Court to declare the judgment issued by the trial court void and Vacate the judgment issued against Appellant by the trial court and the appellate court and hear the issues with the exclusion of the fabricated grants. Appellant also requests this Honorable Court to issue an order stopping the foreclosure of Appellant’s property.

Dated this _____ day of ____________________, XXX

Respectfully Submitted,

___________________________________

XXX

Appellant in pro per

VERIFICATION

I, Teena Colebrook, being duly sworn depose and say that I am the Appellant in the above-entitled action, that I have read the foregoing Motion to Vacate Judgment and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this _____ day of ____________________, XX.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

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